2010 PLP (C (PLC(CS))

SHAHID ANWAR BAJWA, J.

The facts in these petitions are common and simple. The petitioners are permanent employees of the Pakistan International Airlines Corporation (hereinafter referred to as the respondent-Corporation). They have been in employment for a number of years, in certain cases ranging up to 30 years. The petitioners were allotted accommodations at Pakistan International Airlines Trainee Hostel for Airhostesses and they have been regularly paying the hostel charges. All the petitioners have claimed that they are not permanent residents of Karachi and therefore are staying at the hostel. They claim that they are entitled to stay in the hostel in accordance with para 2.01.01 of the Personnel Policies Manual issued by the Corporation on 15-9-2008. The relevant para reads as under:

"Eligibility.

All Air Hostesses/Air Hostess (Trainees) appointed/recruited from stations outside Karachi when based or, undergoing training in Karachi shall be eligible for accommodation/boarding facilities at Air Hostesses Hostel, Karachi, subject to availability of necessary accommodation at charges/rule as may be prescribed by the Management from time to time." The petitioners were issued a letter. on 19-10-2009. The letter asked them to vacate the hostel. The relevant paras of the letter read as under: "We would like to remind you again that, as it is PIA trainees hostel, therefore, this facility be only made available to trainees or female crew arriving Karachi for any other training (Para 31). After completion of basic training, the crew will only be allowed to stay for period of one year after the date of their passing out (Para 32). Any resident, who gets married must vacate the Hostel irrespective of the station of posting of her husband (Para 36)."

2. This letter has been challenged through the present petitions. Learned counsel for the petitioner made the following submissions:

(1) That the petitioners are residing in the hostel and their eligibility and right to reside there is not 'determined by any of their respective terms and conditions of employment. It is on account of a concession given by the employer and it is not available to the employer to withdraw such concession without any fault on the part of the petitioners. (2) It is claimed by the respondent-Corporation that rules and regulations for allotment in the Trainee Airhostesses Hostel were revised on 27-7-2009. Such revision has been issued under the signature of Director Flight Operations. The revision is of no legal effect because any amendment in the policy requires approval of the Chairman/Managing Director of the respondent-Corporation. (3) Even if it is assumed, for the sake of arguments, that the rules have been validly amended such amendment can be only prospective and not retrospective. Learned counsel relied upon Dr. Syed Sharaf Ali Shah and 2 others v. Province of Sindh and others 2009 PLC (C.S.) 574. (4) Even retired persons are residing at the Airhostesses hostel besides many senior female members of cabin crew. Therefore act of the management in calling upon the petitioners to vacate their respective accommodations allotted to them is ex facie discriminatory. (5) Regarding maintainability of the petition in view of the fact that the respondent-Corporation does not have statutory rules, learned counsel relied upon Syed Ahsan Ali v. Federation of Pakistan, through Secretary, Information and Technology and 4 others 2010 PLC (C.S.) 668. (6) Learned counsel further submitted that the grievance of the petitioners involved right to life. Therefore in any case Constitution Petition would be maintainable. He relied upon Abdul Rehman v. Federation of Pakistan through Secretary Ministry of Petroleum, Islamabad and 3 others 2010 PLC (C.S.) 691.

3. Mr. Shafquat Ali Shah Masoomi, learned counsel for the respondent Corporation categorically stated that at the hostel none but trainees are entitled to stay. He further categorically stated that except the petitioners no other non-trainee Airhostess or female cabin crew member is staying at the hostel. Regarding maintainability of the petition Mr. Masoomi relied upon Asadullah Mangi and others v. Pakistan International Airlines Corporation and others 2005 SCMR 445, A. George v. Pakistan International Airlines Corporation, PLD 1971 Lah. 748, Muhammad Yousuf Shah v. Pakistan International Airlines Corporation PLD 1981 SC 224, Muhammad Mumtaz Javed v. Pakistan, through Secretary Ministry of Communication, Government of Pakistan and 2 others 1988 CLC 1965, Pakistan Red Crescent Society and another v. Syed Nazir Gillani PLD, 2005 SC 806, Zeba Mumtaz v. First Women Bank Ltd. and others PLD 1999 SC 1106 and United Bank Limited v. Ahsan Akhtar 1998 SCMR 68.

4. Learned Deputy Attorney-General supported arguments of Mr. Masoomi and submitted that firstly the hostel is meant for trainees only and secondly no fundamental right is involved.

5. We have considered the submissions made by the learned counsel and have also gone through the record as well as case-law cited at the bar.

6. In the notice for vacation issued to the petitioners on 19-10-2009 reference is made to paras 31, 32 and 36 of the new rules. The said paras read as under:

"

31. As it is PIA trainees Hostel therefore, this facility be only made available to trainees or female crew arriving Karachi for any p other training. (32) After completion of basic training, the crew will only be allowed to stay for period of one year after the date of their passing out. (36) Any resident, who gets married must vacate the hostel irrespective of the station of posting of her husband."

7. First ground urged by Mr. Noorani was that allotment of accommodation in the hostel is not a term and condition of employment but is in the shape of concession by the employer to its employees. This statement, it appears, was made by .the learned counsel keeping in view judgment of the Hon'ble Supreme Court in the case of Pakistan International Airlines Corporation and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676 wherein the honourable Supreme Court has held that where there are no statutory rules, principle of master and servant shall apply and employees of such an organization cannot invoke constitutional jurisdiction of High Court under Article 199 of the Constitution of the Islamic Republic of Pakistan. It appears that in view of such categorical declaration of law by the honourable Supreme Court learned counsel for the petitioners contended that it was not as a matter of right under the terms and conditions of employment that accommodations were allotted to the petitioners but it was as a concession by the employer. Learned counsel argued with vehemence while relying upon Dr. Syed Sharaf Ali Shah's case (supra). Facts of the reported case were that the petitioners therein were government servants who were allotted government residential accommodation. After several years that were served with identical notices stating that their possession was unauthorized as according to the government policy of 1999, Government residences were only for civil servants posted in the Secretariat. Consequently respective allotments were cancelled by the competent authority and the petitioners were required to vacate the premises within 30 days. Supreme Court in the first place observed as under:- "

8. The argument advanced by learned Additional Advocate-General that by a change of allotment policy, the petitioners became unauthorized occupants or the allotment in their favour became liable to cancellation hardly merits any serious consideration. It is too well-settled that any executive dispensation or change of policy could never have retrospective effect or impair vested rights. Indeed, the Government may be well within its rights to change its allotment policy. Nevertheless such change could only apply to allotments made after its enforcement. It would never affect the rights of the old allottees which could only be taken away through legislative dispensation given retrospective effect."

8. Thereafter Supreme Court referred to clause (vi) of the allotment order which is in the following words:

"(vi) That you will vacate the above mentioned premises immediately on your transfer from Karachi, retirement from Government service or cancellation of allotment and will deliver vacant possession to the Executive Engineer, Provincial Buildings Division-I/II, Karachi under intimation to this office." and then observed as under:

"8-A. We are surprised, how, the learned Judges of the High Court construed clause (vi) of the allotment order to presume that the allotment in favour of the petitioners could be cancelled at whim. It is well-settled that no public power could be exercised arbitrarily at the whims of those. bestowed with it. In our opinion a careful reading of the allotment order clearly demonstrates that the allotment was liable to be cancelled only upon the failure of the petitioner to abide by the conditions set out in clauses (iii) and (vii) i.e. non-payment of rent or utility charges within the stipulated time or sub-letting. Similarly, the use of the word "provisionally" could only be relatable to clause (2) i.e. in the event of the allottee's failure to occupy the house within four days of the allotment could certainly not mean that the petitioner could be arbitrarily ejected after decades of occupation. Indeed, it is nobody's case that the petitioner did not qualify for allotment at the time the orders in their favour were made or ever violated any terms of the orders."

9. Reference may also be made to the case Syed Ahsan Ali (supra) relied upon by the learned counsel for the appellant. A perusal of that case indicates that the learned Division Bench relied upon Tanweer-ur-Rehman v. Pakistan International Airlines Corporation 2009 PLC (C.S.)

28. It may not be out of place to mention that the later judgment was set aside by the honourable Supreme Court in the case of Pakistan International Airlines Corporation and others v. Tanweer-ur-Rehman and others PLD 2010 SC

676. Therefore nothing could come to gain of the learned counsel by relying upon Syed Ahsan Ali's case. Learned counsel also relied upon Abdul Rehman's case (supra) decided by a Division Bench of this Court of which one of us (Shahid Anwar Bajwa, J.) was a member and it was held that where a fundamental right is involved petition under Article 199 of the Constitution would be maintainable even in the absence of statutory rules. The question involved in that case was that 13 years after retirement of a person, organization changed the rules thereby disentitling a 73 years old retired employee from medical facility to which he was entitled after retirement under the rules prevailing at the time when he retired. In our opinion the question of medical facility for a 73 years old retired employee who had long ago delivered his part of consideration would involve, if he is illegally deprived of the medical facility during twilight and sunset years of his life, a question touching his right to life but it would be difficult to say that if residential accommodation to an employee is cancelled or withdrawn it would involve a question of right to life.

10. Case of Sharaf Ali Shah is clearly distinguishable because in the allotment order issued to Sharaf Ali Shah specific eventualities were stipulated in which an allotment could be cancelled and Supreme Court held that the public power cannot be exercised arbitrarily at the whims of those on whom such power was bestowed. In the present case, the rules as framed in 2009 clearly stipulate that the hostel is meant for trainees and after completion of training a female cabin crew member can only be allowed to stay in hostel for a period of maximum of one year after the date of her passing out. No arbitrariness can be ascribed to such laying down of such a condition by the respondent-Corporation. Obviously a trainee just inducted into training or still in the first year of her employment and given the circumstance that she belongs to a place other than Karachi would belong to a different category and such classification cannot be said to be unreasonable. Reasonable classification is permitted by law and is not violative of Article 25 of the Constitution. Reference may be made to I.A. Sherwani's case 1991 SCMR 1041. However, whereas a right was claimed in Sharaf Ali Shah's case (supra), it was specifically contended by Mr. Noorani that the petitioners were not claiming any right under their respective terms and conditions of employment but continuance of a "concession". Firstly no document or case-law entitling petitioners to continuance of such a concession was pointed out and secondly action of the management has not been shown to be arbitrary, whimsical or unreasonable.

11. Mr. Noorani contended that the amendment in the rules were made without approval of the competent authority. No such contention can be spelt out, either explicitly or by necessary intendment in the body of the petition and therefore. it would not be in the interest of justice that such a factual contention be allowed to be raised at the stage of arguments.

12. Lastly Mr. Noorani, contended that there are other Airhostesses of long service and certain retired female crew members who have been allowed to stay in the hostel. This assertion is categorically denied by Mr. Masoomi. Be that as it may, if Corporation allows any other female cabin crew member besides those falling within what is stated in Para 31 and 32 of the Circular dated 2-7-2009, the petitioners shall be' entitled to continue to stay at the hostel. That is so because discrimination between the persons belonging to same category cannot be permitted under any circumstances.

13. Mr. Masoomi relied upon a number of case-law regarding maintainability of the petition. All the case-law relied upon by Mr. Masoomi pertain to either right to be inducted in employment or against claimed illegal termination/removal from employment. In fact the question involved in Tanweer-ur-Rehman case (supra) was also removal from employment. Law of master and servant was upheld which law, among others, stipulates that neither, a servant can be thrust upon an unwilling master nor a master can be thrust upon an unwilling servant. Such a question is not involved in these petitions.

14. In view of the above discussion, while we dismiss these petitions, however in order to enable the petitioners to arrange alternate accommodation, they shall be allowed to continue to stay in the hostel for a period of three months from the date of this judgment. We also direct that if the Corporation allows any person not falling within the categories stated in Paras 31 and 32 of Circular dated 27-7-2009 to stay in the hostel, the petitioners shall be entitled to similar treatment. S.A.K./M-133/K Petitions dismissed.